Hamilton County property owners will get some measure of relief in the form of a 25 day delay for payment of the second half property tax bills.

Property owners who pay taxes as part of their monthly mortgage payment will not notice any difference, but property owners who normally pay their tax bill by June 22, will have until July 17 to make that payment.

As reported by the Cincinnati Enquirer, Hamilton County Treasurer Robert A. Goering noted that the delay is necessary in part due to the fact that taxpayers cannot get into the Treasurer’s office to make a payment:  “We have to balance the needs financially of the county and the needs of the individual taxpayer. And we have to balance that against the reality that, right now with this crisis, you can’t actually get to the treasurer’s office.”

Thus far, we are unaware of any other local counties who have delayed the property tax bills. We will update this post if any other counties join Hamilton County.

Warren County will continue with its normal tax bill due date of July 29.

Clermont County property tax bills are due July 8.

Butler County property taxes are due August 3.

In Kentucky, the deadline to initiate a property valuation appeal has been extended to begin on July 6 and end on July 20.

As society changes the way we communicate and receive information, social media has become a more important medium for communicating with the government. This is all the more so as public meetings are moving toward “virtual meetings” on the internet.

When a public body or government official posts on social media and allows comments, it opens a “public forum.” It is well settled constitutional law that government actors cannot pick and choose who may speak in a public forum, and it most certainly cannot discriminate based upon the viewpoint or content of the speaker’s message.

SORTA, the Southwest Ohio Regional Transit Authority – operator of Cincinnati’s bus system – posted on its Facebook page regarding its then plan to offer free fares. Our client, Jordan Arnold, posted a comment suggesting that rather than offer free fares, that the bus system should shut down during the Coronavirus pandemic. SORTA then deleted Mr. Arnold’s comment and blocked him from being able to comment on any of its posts. SORTA left other comments that were supportive of SORTA’s decision undisturbed

By deleting Mr. Arnold’s comment, SORTA stifled Arnold’s speech in a public forum that SORTA itself opened.  SORTA went further by blocking Arnold, but not others, from commenting at all on any of its Facebook posts. There can only be one reason for specifically targeting Mr. Arnold for deleting and blocking – that SORTA was specifically attempting to silence a critical voice. This is the textbook definition of viewpoint discrimination. Other citizens who share SORTA’s viewpoint are permitted to comment, but Mr. Arnold, who does not share SORTA’s position, is silenced.

Just as President Trump may not block critics from commenting on his social media posts, neither may SORTA.

Federal law provides a remedy. Finney Law Firm, along with Curt Hartman, brought suit on behalf of Mr. Arnold pursuant to 28 U.S.C. § 1983, seeking injunctive relief and damages. Via the injunction, we seek to force SORTA to restore Mr. Arnold’s comment and cease blocking him from commenting on its social media posts. Further we seek financial compensation for the damages Arnold suffered by having his speech stifled.

The complaint and motion for injunctive relief are available below and online here and here. Sharon Coolidge’s Cincinnati Enquirer’s coverage of the lawsuit is available here.

If a public official or government body has deleted or blocked your comments on social media, there is a remedy. Email or call Julie Gugino (513) 943-5669.

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As part of our property valuation work, we have received calls from property owners in Ohio and Kentucky asking how the affects of COVID-19 will come into play in property valuation challenges brought this year.

Effective (or target) date of valuation challenge

As an initial matter it is important to know the valuation date at issue. In Ohio, the “tax lien date” is always one year in arrears, so a challenge that is brought this year is actually challenging the value of the property as of January 1, 2019. In Kentucky, the tax lien date is current, so a challenge filed this year is challenging the value as of January 1, 2020.

Timing of when to file a valuation challenge

Because the valuation is as a specific point in time, it is important to consider what was affecting value on that specific date. When hiring an appraiser for a BOR (Board of Revision) in Ohio, or PVA (Property Valuation Administrator) in Kentucky, the appraiser gives her opinion of value as of the tax lien date. So, for instance, if the overall market takes a tumble in March, that would typically not affect the value of a property two month’s earlier. But may suggest that the values were already heading downward in January.

Thus, a hotel or restaurant property owner contemplating a challenge in Kentucky based upon the drop in income due to the COVID-19 virus and the stay at home order, is unlikely to see much weight given to the effects of COVID-19. That said, comparable sales in the past few months (which may reflect the effect of COVID-19 on the real estate market may have some evidentiary weight worth presenting to the PVA.

A challenge next year may be more successful than this year in Kentucky.

For Ohio property owners, COVID-19 is less relevant this year. This is because, as discussed above, the relevant tax lien date is January 1, 2019. As with Kentucky challenges, comparable sales in the past few months can be used as evidence of the value as of January 1, 2019, although the BOR will likely give such sales less weight than sales closer to the tax lien date.

In Ohio, only one challenge per three-year cycle

In Ohio the county auditors revalue properties every three years (the “triennial”). For Hamilton and Clermont Counties 2019 is the last year of the triennial. A new triennial will start with the 1/1/2020 value determined later this year by the County Auditors. In Warren County, the last year of the triennial is 2020 – meaning that the Warren County Auditor will determine a new three year value as of 1/1/2021.  As a general rule, property owners may only file one challenge per triennial (R.C. 5715.19(A)(2)). So a cautious approach me be the better approach.

If you’ve already filed a challenge in Ohio, it is worth a shot to raise the issue of COVID-19, but as discussed above, it may fall on deaf ears. For Hamilton County property owners, the best bet may be to wait until 2022 to file for the value as of 1/1/2021. For Warren County property owners, a better approach may be to file next year challenging the value as of 1/1/2020 (this may be a futile effort), but you will be able to refile again in 2022.

Legislative change?

The Ohio legislature is working on multiple bills in rapid succession to stabilize the economy and prevent economic hardship to businesses and property owners.  Perhaps this will be one area where the inequity of January 1 versus April 1, 2020 property values will be addressed.

Thus, in light of the spate of COVID-19 relief acts, it would not be surprising to see the state legislatures act to provide property tax relief with a 4/1/20 or 5/1/20 effective or target date for 2021 valuation challenges.  We will keep an eye on the legislatures in Ohio and Kentucky and update our blog as we learn more.

Conclusion

Ultimately, property owners should temper their expectations that the BOR or PVA will recognize the effects of COVID-19 on property values in this year’s challenges.

Hopefully the financial effects of COVID-19 will not be long-lasting. But if they are, it may be a better basis for a valuation challenge in 2021 or even 2022 (for an effective date after the COVID crisis broke out).

Contact Christopher P. Finney  (513-943-6655) for assistance with your property valuation challenge.

Cincinnati media has given extensive coverage to the Probate Court complaint filed by Attorneys Curt Hartman. Here is a quick round-up:

Television coverage of the filing of the complaint by WKRCWCPO; WLWT; and Fox19

Curt Hartman appeared on WLW with Scott Sloan on Thursday beginning at approximately 95:00, and again on Friday beginning a approximatley 40:00.

WCPO discussed the case against Tamaya Dennard on its podcast Hear Cincinnati

Attorney Curt C. Hartman, of counsel with Finney Law Firm, has filed a complaint in the Hamilton County Probate Court to remove Cincinnati Councilmember Tamaya Dennard from office pursuant to R.C. 733.72-76.

A copy of the Complaint is below or available here.

The Complaint was filed on behalf of Mark Miller and four other Cincinnati electors, including State Representative Tom Brinkman.

Under Ohio law when five electors file a complaint alleging that a city official has received payment for her services to the city in addition to her salary; has an interest in a public contract; or is otherwise guilty of malfeasance or misfeasance, the City Solicitor shall prosecute the case before the Probate Court Judge, and, if Dennard is found guilty, she shall be removed from office.

The statute provides that Tamaya Dennard should be ordered to appear before the Probate Court within ten days of the filing of the Complaint.

A press conference is scheduled for 10 a.m. at the Mt. Adams office of Finney Law Firm, 1077 Celestial Street.

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As we have written about previously, real estate transfers involving the sale of a limited liability company or other entity that owns the underlying real estate are under increasing scrutiny by Ohio’s county auditors and school boards. Now, Ohio’s Supreme Court has declared that these sales are “a contrivance for accomplishing the sale of commercial real estate.”

In a decision that will have broad implications on Ohio’s property tax law,  Columbus City Schools Board of Education v. Franklin County Board of Revision, Slip Opinion 2020-Ohio-353, an LLC that owned a 264-unit apartment building was sold but the contract documents indicated that the transaction was actually the sale of real estate, distinguishing this case from prior cases in which the Court had affirmed the Board of Tax Appeals’ treatment of such sales as the sale of a business rather than the sale of real estate. In those prior cases, the transfer of title to real estate did not appear to be the primary factor in the transaction.

“In stark contrast, the BTA in this case confronted a document labeled by the parties as “Sale of Palmer House on the Boulevard 4121 Palmer Park Circle East New Albany, Ohio” and “Purchase and Sale Agreement.”  That is, the contract identifies itself as a purchase agreement for the real estate at issue.  Beyond its cover page, the contract takes the classic form of a purchase agreement for commercial real estate by identifying as the subject matter of the transaction the specific real property along with categories of personal property appurtenant to the commercial operation of the real estate.  Finally, this particular contract includes an explicit provision setting forth an optional method for consummating the deal as a transfer of corporate ownership rather than a conveyance of real estate from the seller to the buyer.

We conclude that the documentation in this case made it reasonable for the BTA to find that this sale, unlike those in the earlier cases, reflected the parties’ intent to sell and purchase income-producing real estate and supported the BTA’s finding that the parties’ transfer of corporate ownership constituted a contrivance for accomplishing the sale of commercial real estate.”
Decision, at ¶¶ 38-39.

The prior cases involved an existing shareholder buying out other shareholders – indicating that such a sale was not “arm’s length” and that it was truly the business that was being purchased rather than simply the underlying real estate; and sales where the conveyances did not indicate that the real estate was truly the asset being acquired, rather than an actual going concern.

As a result finding that the transfer was a sale of real estate, the Board of Tax Appeals then treated the sale price as the “best evidence of value” of the real estate, thereby shifting the burden to the property owner to defeat the sale price value. Ultimately resulting in an increase of value from $16 million to over $34 million.

As school districts and county auditors become more aggressive in identifying membership interest transfers, and treating them as real estate sales, investors would be wise to review their contract documents with an appreciation for the fact that they may end up as evidence in a valuation dispute.

In the past few months, Cincinnati City Council has passed new laws regulating residential landlord/tenant relationships, including requiring all landlords to file extensive rental registration forms with the City and a first of its kind law requiring landlords to accept alternative security deposit payments. These new laws change the dynamic and financial viability of residential rental property within the City limits.

Presented below is a summary of new laws contained in six different enactments by  City Council.

Rental Registration

New Section 874-6 of the Municipal code requires all landlords to register with the city and supply the following information for each rental unit within the city limits:

  1. Name, address, and telephone number of the owners;
  2. If owned by an entity, the name, address, and telephone number of a member or corporate officer;
  3. The name, address, and telephone number for “any and all persons in control of the property” who can be reached 24 hours a day, 7 days a week, 365 days a year;
  4. Street address and permanent parcel ID of each rental property;
  5. Monthly rent charged; and
  6. The number and size of each rental unit, including the number of bedrooms, bathrooms, and approximate square footage of each unit.

Landlords must update any changes in information on the form, any change in ownership, or any change in use, including if the property is vacant for sixty days or more.

There is a registration fee of up to $1 per unit to be charged every time a unit is registered or updated.

Failure to register is a Class D Civil offense ($750 fine [$1,500 if delinquent]). After receipt of notice of violation, each subsequent day is a separate violation punishable by a fine of $150 per day ($300 per day if delinquent).

The rental registration law goes into effect on May 13, 2020.

Read Chapter 874 here.

Late Fee Regulation

Chapter 871 of the Municipal Code has been amended to regulate late fees charged to residential tenants. Like the registration requirement, this change applies to all residential rental properties within Cincinnati.

Section 871-8 caps late fees at $50 or 5% of the monthly rent, whichever is greater.

Section 871-9 prohibits:

  1. interest on late fees;
  2. late fees on late fees; and
  3. late fees assessed against a tenant where the late rent that is owed is owed by a third party payer (CMHA or other rental assistance organizations).

The late fee regulation went into effect on January 28, 2020.

Security Deposit Regulations

The most sweeping change is the newly enacted security deposit regulation.

Sections 871-9 of the Cincinnati Municipal Code have been amended to require that all landlords provide a receipt to the tenant when the security deposit is paid (unless such payment is by the tenant’s personal check).

871-9 also now requires that landlords “who own and control more than twenty-five rental units” who require security deposits must offer to accept at least one of the following options in lieu of the required security deposit:

  1. Rental security insurance;
  2. Payment of the security deposit over at least six monthly installment payments due on the same day as the rent;
  3. Payment of a reduced security deposit no greater than 50% of the monthly rent charged for that unit.

Additionally, prior to entering into a rental agreement, the landlord must provide the tenant with a written notice of the available security deposit alternatives. The law also prohibits landlords from requiring any additional security should a tenant select an alternative security deposit arrangement.

The security deposit regulations take effect starting on April 14, 2020.

Notably, the security deposit regulations apply only to those landlords who own twenty-five or more units. So long as a distinct LLC or other entity owns less than twenty-five units total, that owner would not have to accept the alternative security deposits.

The municipal code does not provide any specific penalty for landlords who do not comply with the new security deposit provisions, but does provide that a tenant may bring a lawsuit to obtain an injunction to force a landlord to comply with the Cincinnati landlord tenant laws. The city solicitor could also sue for such an injunction.

Read the security deposit ordinance here.

Conclusion

We expect legal challenges to these new laws. If you have questions about how these new laws may affect you, contact us using this link.

If you have specific questions, contact Christopher P. Finney at 513.943.6655.

As reported by Eye on Ohio,  State Representatives Doug Green (R. 66th House District), and Mike Skindell (D. 13th House District), have put forth Ohio House Bill 449 in late December, seeking to capture conveyance taxes when entities owning real estate, are sold. Read the bill and follow its status here.

What is a “Drop and swap?

Called a “membership interest transfer” or “drop and swap,” conveying the entity that owns real property rather than simply selling the real property directly, allows buyers to avoid reporting the transfer as a sale of real property, and the value placed on the property as part of the transaction. County auditors and school boards in particular have complained that these conveyances cost public entities tax revenues that would have been generated had the parties engaged in typical real estate transactions.

New legislation to capture drop and swap sales

The current proposal would require that whenever more than 50%  of the ownership interest of an entity owning real property (either directly or indirectly) is conveyed, that the conveyance be reported to the county auditor and the value of the real estate be determined and taxed as part of the sale.

Membership interest transfers have come under increasing scrutiny as property owners perceive that these transfers distort the tax rolls and shift tax burden onto less sophisticated owners. Many property tax levies are for a fixed dollar amount (e.g. a levy to raise $10 Million). So that, as the value of one property increases, other owners pay a slightly smaller amount toward that fixed dollar tax, while the higher value property owner pays a slightly higher amount toward that fixed dollar tax. When one property is kept at a lower value via a membership interest transfer, those other owners continue to pay a higher amount toward that fixed dollar tax.

As news outlets such as Eye on Ohio report on this issue, public opinion is swaying in favor of taxing  these transfers.

As always, would be property investors should consider not only the current tax bill, but the likely tax bill after purchasing a property, and factor that into their purchase price.

Status of legislation

H.B 449 has been referred to the House Ways and Means Committee, on which sponsor Doug Green sits. At this time no hearings have been scheduled on the bill.

As we predicted nearly two years ago to the day, whether this particular bill goes into law or not, the effort to identify, value, and tax these conveyances will continue.

Upcoming tax presentation to REIA

This bill, and membership interest transfers generally, will be a part of our presentation with Hamilton County Dusty Rhodes to the Greater Cincinnati Real Estate Investors on February 6. Learn more about that event and how to sign up for a free ticket here.

Conclusion

The attorneys of Finney Law Firm have achieved literally hundreds of millions of dollars in property tax valuation reductions over the past 15 years.  Let us help you with your tax valuation challenge.  For more information on our property tax valuation practice contact Christopher P. Finney at 513.943-6656.

The Dayton shooting earlier this year was horrific and sad for the victims and their families. One friend of the shooter has found himself in legal jeopardy not for any involvement with the shooting, but for his willingness to assist the law enforcement investigation efforts.

In order to purchase a firearm from a federally licensed firearms dealer, one must complete ATF Form 4473, which asks, among other things, if you are addicted to, or a user of illegal drugs. Since at least October 2016, the form includes a warning that marijuana is still illegal under federal law regardless of whether states have legalized or decriminalized marijuana.

In helping law enforcement, Ethan Kollie allowed federal agents into his home and admitted to habitual use of marijuana and psychedelic mushrooms.  Review of Kollie’s Form 4473s revealed that Kollie had marked “No” in response to the illegal drug question. Thus, upon finding firearms and illegal drugs in Kollie’s home, the federal government had an open and shut case for (1) lying on ATF Form 4473 (18 USC § 924; and (2) being a user of unlawful drugs in possession of a firearm (18 USC § 922(g) & (n).

Kollie admitted that he lied about his drug use on the form because he knew he would not be able to purchase firearms had he answered truthfully.

Lying on Form 4473 is a felony punishable by up to ten year’s imprisonment. For being a user of unlawful drugs in possession of a firearm, the punishment is up to five years in prison.

Keep in mind that Mr. Kollie’s crimes have nothing to do with the shooting. He simply agreed to talk to law enforcement and allowed them into his home, and those discussions and the permitted search of his home resulted in these charges.

Mr. Kollie has plead guilty and is expected to be sentenced in early 2020.

Two major lessons from Mr. Kollie’s conviction: (1) don’t lie on federal forms; and (2) consult an attorney before you allow law enforcement access to your home. Mr. Kollie is learning these lessons the hard way.

As discussed in a previous post, courts will only enforce contracts for the sale of real estate if the contract is in writing (and signed by the person against whom you seek enforcement). Click here to read that post.

The legal principle that requires certain contracts to be in writing is the Statute of Frauds. In Ohio, the Statute of Frauds is codified in Chapter 1335 of the Ohio Revised Code; and the Statute of Frauds covers more than just real estate contracts (both sales and leases). For example, R.C. 1335.02 requires loan agreements with financial institutions be in a signed writing to be enforced. However, “the use of a credit card results in the person using the card being bound by the card member agreement.” Citibank, N.A. v. Ebbing, 2013 -Ohio- 4761, ¶ 13, 2013 WL 5783722, at *3 (Ohio App. 12 Dist.,2013)

R.C. 1335.05 extends the Statute of Frauds to a promise to pay the debts of another person; an executor’s promise to pay the debts of the estate from her own funds; an agreement made in consideration of marriage; and for contracts that are not to be performed within one year.

R.C. 1335.11 further extends the requirements of the Statute of Frauds to sales commissions.

These same subjects are covered by Kentucky’s the Statute of Frauds at K.R.S. 371.010.

Despite the formal language of the statute, we see these in everyday life: a parent cosigning on a child’s student loans for instance. An agreement made in consideration of marriage includes prenuptial agreements (but not the agreement to marry itself).

When faced with oral agreements that are not to be performed within one year, courts will often engage in detailed analysis to determine if it is possible that the contract could have been performed within one year. For instance, in Jones v. Pouch, 41 Ohio St. 146, 1884 WL 84 (Ohio 1884), the Ohio Supreme Court ruled that an oral contract to construct a section of road in 1 year and 20 days was enforceable, because it was possible to have completed the work within one year, the additional twenty days were merely a precaution against contingencies. This case is still good law and was cited in the 2015 edition of Williston on Contracts despite being 131 years old.

Additionally with respect to agreements that are not to be performed within one year, Ohio’s courts have determined that the statute of frauds will not bar recovery where one party has fully performed their obligations under the contract but has not been fully paid. In another 19th century case, Towsley v. Moore, 30 Ohio St. 184, 1876 WL 176 (Ohio 1876) the mother of Olive Towsley, an 11 year old girl arranged for her to work in the home of Mr. Moore until she turned 18, in exchange for room and board, and, when she turned 18, Moore was to pay Olive the value of her services. The Court rejected Moore’s argument that the statute of frauds prevented Olive from recovering the value of her services. Ultimately, Moore was ordered to pay Olive $300.00 for her nearly 7 years of service.

Even where a contract fails to satisfy the requirements of the Statute of Frauds and a breach of contract claim cannot be brought, a claim for unjust enrichment or other equitable claims may allow you to obtain a just result.

Whether you are the borrower or the lender, employer or employee, you can avoid these questions by getting your contract in writing and signed by all parties.